How Religious Rights Can Challenge the Common Good

Protesters outside the Supreme Court as it heard arguments in two cases, brought by three Christian-owned ­companies, challenging the Affordable Care Act’s requirement that businesses provide female employees with insurance that covers contraception, Washington, D.C., March 25, 2014

Never underestimate the tenacity of libertarianism in contemporary American politics. From the outset of his first term, President Barack Obama dared to take on this strain of American culture by pressing for passage of the Affordable Care Act, which extends health insurance to millions of uninsured Americans—and therefore represents to its critics all the worst that big government has to offer. His opponents fought the bill aggressively in Congress, where they lost.

They then turned to the courts, arguing that Congress lacked the power to require people to either purchase health insurance or pay a tax. In essence, they claimed that the federal government could not ask Americans to pitch in for the common good. Again, they lost. And for good reason. In virtually every other developed nation, the idea that universal heath care is part of the social contract has long been established. In the United States, it has for decades been a feature of social life for the elderly and those poor enough to qualify for Medicaid. But it remains anathema to the libertarians, and they have not let up.

The latest round of challenges takes the “death by a thousand cuts” approach. In two consolidated cases now pending before the Supreme Court, three for-profit corporations owned by Christians opposed to abortion—Hobby Lobby arts and crafts stores, Mardel bookstores, and kitchen cabinet wholesaler Conestoga Wood Specialties—assert that because they object on religious grounds to providing insurance coverage for certain types of contraception, they must be exempted from the ACA’s requirements that employer-provided insurance plans pay for such services. They object not to all birth control, but to those methods, such as the IUD and the morning-after pill, that they believe end life after conception.

If the challengers prevail, as they may, we can expect a long line of businesses objecting to covering other medical services, and seeking similar exemptions. At bottom, the cases, argued in March and likely to be decided by June, ask whether individuals and businesses have a religious right to opt out of sharing responsibility for assuring that everyone has adequate and affordable health care.

Ironically, the religious objectors would have no claim if Congress had enacted a single-payer system for health insurance, as many on the left preferred. Under a single-payer plan, the government itself would always provide the insurance, as it does for many under Medicare and Medicaid, and there would be no legal basis for religious objections. If people chose not to use birth control, that would be that. The religious objection to the ACA stems from the requirement that the employer pay for the insurance; these employers object to being complicit in the provision of forms of contraception that they view as akin …

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